Gay marriage: Judge Michael McShane provides little clue in how he will rule on Oregon case

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EUGENE- U.S. District Judge Michael McShane on Wednesday
pressed attorneys on their rationale for seeking to overturn Oregon's ban on
same-sex marriage, but gave little indication on how he might rule in the case.

During the two-hour hearing, McShane asked if Oregon voters
should get a chance to once again consider the issue of gay marriage at the
ballot box "before the court steps in" and passes judgment on the issue.

The federal judge also asked whether he should stay any
decision striking down the law to give the appellate courts time to sort out
the issue.

Both sides in the case are urging McShane to strike down the
law and allow gays and lesbians to soon begin marrying in Oregon, and the
attorneys uniformly urged McShane not to wait for appeals courts or the voters
to act on the issue.

Rosenblum, who was in the courtroom Wednesday but did not
present any legal arguments, announced earlier this year that she would not
defend the 2004 voter-approved constitutional amendment that limited marriage
to one man and one woman.

That left both sides in the case hoping that McShane would
quickly move to strike down Oregon's ban on same-sex marriage, following the
lead of several other federal judges around the country who have acted against
similar marriage laws that exclude gay and lesbian couples.

Basic Rights Oregon, which formed a campaign organization to
push for a November ballot measure allowing same-sex marriage in Oregon, says
it will drop the measure if the judge strikes down the law before May 23.

Besides speculating on different courses of action he might
take, McShane didn't indicate how quickly he is inclined to rule. He is also considering whether to allow the
National Organization for Marriage – which opposes same-sex marriage – to
intervene in the case. He's scheduled a
May 14 hearing on that issue.

The marriage organization's chairman, John Eastman, has
questioned whether McShane should hear the case because the judge is raising a
child in a same-sex relationship.
Eastman said that puts McShane in the same position as the plaintiffs,
who include four same-sex couples seeking the right to marry.

The judge referred to that in court, saying that it was
a surprise to him and his partner to hear that they wanted to marry. "We have no plans to get married," he said.

McShane also repeatedly questioned the attorneys on their
legal reasoning for why the federal constitutional rights of same-sex couples
are violated by Oregon's refusal to allow them to marry. And he showed some flashes of humor as well.

When a loud electronic squeal was emitted from the sound
system, McShane quipped, "That was Scalia."
That's a reference to U.S. Supreme Court Justice Antonin Scalia, an ardent
supporter of state laws prohibiting same-sex marriage.

Afterward, the attorneys opposing Oregon's ban said that McShane's questioning appeared to be aimed at exploring the
issues in the case, not stating a point of view.

"It's almost
impossible for us to speculate about what the judge might be thinking," said
Jennifer Middleton, a Portland attorney working with the American Civil
Liberties Union on behalf of same-sex couples seeking to marry.

Eastman, from the marriage organization, also attended the
hearing and said McShane appeared to be trying to carefully work
through the issues in the case.

But Eastman argued that a number of other relevant issues
were not addressed at Wednesday's hearing because there wasn't anyone defending
Oregon's 2004 constitutional amendment.

"That's not the judge's fault – that's the state attorney
general's fault" for deciding not to defend the law, Eastman added.

Tom Johnson, another attorney working with the ACLU on the
case, said afterward that even if the National Organization for Marriage is
allowed to intervene, his side will argue that the group does not have standing
to appeal any decision by McShane.

In addition to the legal arguments, Wednesday offered a
chance for supporters of same-sex marriage to highlight the importance of the
issue to them. Three of the four couples that are plaintiffs in the case attended the hearings in person, while the
fourth listened by phone. One couple
brought their adopted son into the courtroom to sit behind the attorneys.

Jeana Frazzini, executive director of Basic Rights Oregon, said
before the hearing that she was looking forward to the attorneys making a
"strong case on behalf of the thousands of Oregon families who remain in some
ways on hold depending on the outcome of the case."

Frazzini said that either through a ballot measure or court
action, "we will bring the freedom to marry into Oregon this year."

In court, the attorneys repeatedly hammered away at the
argument that there was little reason for the state of Oregon to deny same-sex
couples the right to marry.

Mary Williams, a special assistant attorney general for the
state, argued that Oregon has repeatedly extended a variety of protections to
gays and lesbians, and that "it really forecloses the state's
ability" to argue that marriage should be carved out as forbidden for same-sex
couples.

Lake Perriguey, who brought the first of the two lawsuits
challenging Oregon's ban on same-sex marriage, said that the government should
have a high bar for interfering with the "fundamental right" of individuals to
marry.

McShane noted that former Justice Sandra Day O'Connor, when
she was on the U.S. Supreme Court, wrote in support of the "traditional
interpretation of marriage."

"I think Justice O'Connor evolved on this issue as well,"
Perriguey responded to laughter as he echoed President Barack Obama's
statements that he was evolving on the issue.